Open Letter BC Attorney General David Eby

Amnesty International strongly agrees with and supports the Union of BC Indian Chiefs’ August 7th Open Letter in which their executive called on your government to denounce and formally apologize for the harmful and disrespectful arguments being made by BC Hydro in the current court hearings about the Site C dam.

This massively destructive mega-project was approved without prior determination of whether flooding the Peace River Valley would violate rights protected in Treaty 8, as was consistently stated by First Nations throughout the review process. In such a context, it is unconscionable that First Nations have been forced to take on the onerous burden on launching a civil suit just to have their Constitutionally-protected rights properly addressed.

Amnesty International has repeatedly called on your government to at least agree to suspend construction while such fundamental questions of rights protected in Canadian and international law are still before the courts. We are deeply troubled that instead your government has not only mobilized its considerable resources to fight against an injunction; the province and BC Hydro have made legal submissions that would deny, limit, and undermine the rights of Treaty 8 First Nations and cause far reaching and lasting harm to all Indigenous peoples in Canada.

Among numerous concerns, the Open Letter condemns BC Hydro’s statements redefining Treaty rights to hunt, fish and trap as excluding the traditions, teachings, ceremonies and other practices that, as UBCIC states, “make these acts so meaningful and essential to First Nations.” We note with concern that BC Hydro’s statements in court are simply a more overt variation of the same argument made by the province in its written submission which argues that there is no Treaty obligation to protect the specific areas such as the Peace River Valley that First Nations identify as essential to the meaningful exercise of their rights.

We are also deeply troubled by assertions made by BC Hydro, which are echoed in the province’s written submission, that an injunction would represent “irreparable harm” to the public interest because the court would be interfering in matters already decided by government. As you know, in a Constitutional democracy it is the role of the courts to ensure that governments - and Crown corporations - are not above the law. This is a role that is made all that much more necessary when governments choose to wilfully disregard the Constitutional rights of already marginalized and disadvantaged groups and peoples.

As UBCIC noted in its Open Letter, your government has made important commitments to upholding the rights of Indigenous peoples and pursuing reconciliation. Notably, the federal government, which has made similar commitments, has chosen not to oppose the requested injunction. It is not too late for the Government of British Columbia to do the same. In fact, having seen the harm being done to relations with First Nations through the arguments and legal tactics used in the injunction hearing, we would argue that it is more important than ever that your government distance itself from the positions BC Hydro has taken in court and withdraw its objections to a temporary injunction.

If, instead, your government choses to continue to fight the injunction, Amnesty International urges you to at least ensure that positions taken and arguments advanced on your behalf, and on behalf of the people of British Columbia, are consistent with your government’s commitments and obligations to uphold the human rights of all, without discrimination. An honest and honourable presentation to the court would include:

Affirmation that the rights protected in Treaty 8 must be understood in relation to the cultural values, histories, laws, protocols, practices and traditions of the First Nations themselves – precisely as demanded by the Constitutional imperative of reconciliation.

Recognition of the importance of testimonies of First Nations elders and tradition keepers as to the historic and enduring cultural significance of the Peace River Valley.

Admission of the undeniable truth that inundating the Peace River Valley will cause severe, permanent, and irreparable harm to First Nations use of the land, as the joint federal provincial environmental impact assessment concluded.

Admission that while your government prefers to proceed with construction, doing so is not, and has never been, the province’s only option.

Acknowledgement that the province is, in fact, relying on the court to resolve questions of Treaty rights violations that should have been addressed before the project was ever approved.

There is no doubt that making such admissions will weaken your legal argument. However, it is never the role of government to win court cases at any cost, especially not when fundamental issues of human rights are at stake.

In conclusion, I would like to note the sad irony of the fact that we are writing to you on the date recognized by the United Nations as the International Day of the World’s Indigenous Peoples. As of this month, it is also one year since the UN Committee on the Elimination of Racial Discrimination (UN CERD) called for an immediate halt to construction of Site. In making this recommendation, the Committee expressed concern not only about the threat of “irreversible destruction of Indigenous lands, and subsistence” but also about the significant barriers to justice for Indigenous peoples forced to defend their rights in court. CERD underlined the urgency of this recommendation by asking Canada provide a response within one year – that is, by the end of this month – on measures taken to implement this recommendation.

A decision to withdraw your government’s opposition to the requested injunction would signal a good faith effort to engage with the urgent recommendation of this expert human rights body. In contrast, continued efforts to minimize and deny a meaningful interpretation of Treaty rights only deepens the human rights violations that UN CERD has rightly concluded would be caused by the destruction of the Peace River Valley.